McColgan v. Brewer

• Decision Date: 19 December 2013
• Citation: 112 A.D.3d 1191,977 N.Y.S.2d 790,2013 N.Y. Slip Op. 08492
• Parties: John McCOLGAN, Appellant, v. Donald BREWER et al., Defendants, and Chicago Title Insurance Company, Respondent.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1191
977 N.Y.S.2d 790
2013 N.Y. Slip Op. 08492

John McCOLGAN, Appellant,
v.
Donald BREWER et al., Defendants,
and
Chicago Title Insurance Company, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 19, 2013.

[977 N.Y.S.2d 791]

Law Office of Michael G. Dowd, New York City (Naill MacGiollabhui of counsel), for appellant.

Fidelity National Law Group, New York City (Edward M. Tobin of counsel) and Jacobowitz & Gubits, LLP, Walden, for respondent.

Before: STEIN, J.P., McCARTHY, SPAIN and EGAN JR., JJ.

STEIN, J.P.

Appeal from an amended order of the Supreme Court (Zwack, J.), entered May 9, 2012 in Ulster County, which granted a motion by defendant Chicago Title Insurance Company for summary judgment dismissing the complaint and cross claims against it.

The underlying facts of this case are more fully set forth in our prior decisions (84 A.D.3d 1573, 923 N.Y.S.2d 276 [2011], 75 A.D.3d 876, 906 N.Y.S.2d 353 [2010] ). Briefly, in April 2005, plaintiff purchased property that included a landlocked 10–acre parcel of land in the Town of Rosendale, Ulster County, to which access from Route 32 depends upon a right-of-way (hereinafter ROW) over certain adjoining properties. In connection with that purchase, plaintiff was represented by defendant Philip Kirschner, who retained Abbacy Abstract to procure a title insurance policy. Ultimately, plaintiff purchased a policy through Abbacy from defendant Chicago Title Insurance Company, which insured against, among other things, loss or damage resulting from a lack of access to and from the property. Thereafter, in connection with zoning applications made by plaintiff, Kirschner obtained documents from Abbacy with respect to the policy and the ROW. When plaintiff's use of the ROW was challenged by his neighbor the following year, Kirschner contacted Abbacy to discuss the ROW. Plaintiff eventually filed a claim with Chicago Title under the title insurance policy. Upon Chicago Title's rejection of the claim, plaintiff commenced actions—which were subsequently consolidated and amended—asserting, as pertinent here, claims against Chicago Title for breach of contract and fraud.

Following this Court's affirmance of a determination of Supreme Court that plaintiff's parcel was not benefitted by the ROW (84 A.D.3d 1573, 923 N.Y.S.2d 276 [2011], supra ) and settlement of plaintiff's breach of contract claim against Chicago Title (as well as various claims brought by plaintiff against other parties), Chicago Title moved for summary judgment dismissing, among other things, the fraud claim. Supreme Court granted that motion, prompting this appeal by plaintiff.

[977 N.Y.S.2d 792]

We affirm. The essence of plaintiff's fraud claim is that, after the title insurance policy was issued and questions arose regarding plaintiff's access to the ROW, Abbacy, as an agent of Chicago Title, continued to represent to Kirschner that plaintiff was entitled to the benefit of the ROW and that this representation was made with knowledge of its falsity for the purpose of inducing plaintiff to refrain from filing a claim pursuant to the title insurance policy. Supreme Court found that Chicago Title was entitled to judgment dismissing the claim because Abbacy was not acting within the scope of its authority when it made the subject representations. Based upon our view of the record, we find that, even if Abbacy did have authority to act as an agent of Chicago Title, Chicago Title established the absence of...